Best Practices for Proactively Managing Workplace Issues and Minimizing the Risk of Employment-Related Litigation By TIM MCCONNELL and KIMBERLY VEIRS
The past few years have been unprecedented for everyone, but employers have faced particular challenges in trying to keep their employees healthy and able to continue working while simultaneously navigating a significant amount of new – and often confusing – legislation, mandates, and executive orders. Due to these challenges, the focus on best practices for day-to-day management of employees has fallen by the wayside for many employers. However, as we approach the two-year mark since the beginning of the COVID-19 pandemic and are beginning to see some light at the end of the pandemic tunnel, now is a great time for employers to revisit these best practices that will enable them to better manage their workforces and reduce the risk of employment-related litigation.
interactive and provide several examples so that employees leave the trainings feeling equipped to identify and handle various situations that may arise during their employment. All new employees should be trained immediately upon hire regarding harassment and discrimination. Ideally, employers should provide refresher trainings annually and even more frequently when possible.
Auditing Pay Practices Education through Training Educating employees through a well-developed training program is one of the best investments that employers can make in their workplaces, particularly in light of the current enforcement environment. The Department of Labor (DOL), the National Labor Relations Board (NLRB) and the U.S. Equal Employment Opportunity Commission (EEOC) are making concerted efforts to share information and work together, which requires employers to be very proactive in managing potential employee issues. The most effective way to do so is by providing training for all employees. Although the federal equal employment opportunity laws do not require employers to conduct anti-harassment/anti-discrimination training, several states and municipalities require and/or encourage training. Training is a great way to reinforce a company’s culture, establish clear expectations, and to educate all employees about acceptable conduct, work rules, and consequences for non-compliance with those rules. Training is also beneficial from a legal perspective to establish an affirmative defense in defending harassment lawsuits. Employers must take reasonable care to prevent harassment from occurring in their workplaces. This requires employers to have policies in place designed to prevent harassment, and courts also look at whether employers conduct anti-harassment training and the frequency and effectiveness of that training. Training and education must start at the top of an organization. There has to be buy-in from the senior executives in an organization in order for training to be effective. Training of senior level executives is critical as the company’s compliance with employment laws rests in their hands. They must be educated on the specific requirements of employment laws and their individual roles and responsibilities in ensuring the company’s compliance with those laws. Employers should spend time educating managers, supervisors, and team leaders on employment laws and general best practices that they need to know in order to interact with, and manage, other employees such as diversity and inclusion, FMLA/ADA issues, and performance management. Training of non-management and non-supervisory employees will look different from training provided to supervisory employees, but is equally important. At a minimum, employers should train non-management and non-supervisory employees on the various equal employment opportunity laws, examples of acceptable and unacceptable conduct, and the employer’s anti-harassment and anti-discrimination policies and complaint reporting procedures. In-person training is by far the most effective method of training when practicable. Virtual live training can also be effective if a workforce is spread out across various locations. Recorded trainings are acceptable as a last resort, but not as likely to be effective. When choosing who to conduct training, an outside third party can be an effective resource to provide a different perspective to employees during training. If employers choose to use outside counsel to conduct training, employment litigators that actually see how the courts scrutinize employer policies and training during harassment and discrimination lawsuits can provide an interesting and valuable perspective to employees during training. The trainings should be 18
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The DOL and NLRB entered into a new Memorandum of Understanding a few months ago pledging to share information regarding unlawful denial of minimum wages or overtime pay, as well as misclassification of workers, among other information. (Memorandum of Understanding Between The U.S. Department of Labor, Wage and Hour Division and The National Labor Relations Board; https://www. dol.gov/sites/dolgov/files/WHD/MOU/MOU_ NLRB.pdf). If you are an employer involved in a proceeding in front of one of these agencies, you could face a dual threat of an enforcement action in front of the other agency under certain circumstances. The federal government’s focus on pay practices this year reinforces the need for employers to make it a priority to focus on auditing and updating their pay practices to ensure compliance with all applicable laws. Pay equity and transparency have become increasingly significant legislative priorities, as an increasing number of states have passed laws prohibiting employers from inquiring about job applicants’ previous salaries and/or requiring inclusion of salary ranges in job postings. In 2021, some states went so far as to require employers to affirmatively state the applicable wage rate on any job posting. This is something to continue to watch in all states where employers conduct business as this is a likely a trend that will continue. If employers have any concerns about current pay practices, they may want to consider conducting a pay equity audit. While this may sound daunting to do for an entire company, an audit can be conducted by department, location, certain job titles, etc. Once the scope of the audit is determined, employers should look at how their prior and current payroll practices are being implemented, and which employees are actually in similarly situated positions. After the similarly
